Contributory Negligence

Abstract

In an action based on negligence, the contributory negligence of the plaintiff is a complete defense. So would run a general statement of the rule still widely prevailing in this country, though, as we shall see, it must be taken with many qualifications. For present purposes it is enough to notice that, even as thus simply formulated, the rule has two aspects: (1) that a plaintiff's contributory negligence will affect his recovery in an action for negligence; (2) that it will affect recovery to the extent of being a complete bar to defendant's liability in the action. In seeking the explanation and justification of the rule, from the point of view of both history and policy, it must constantly be borne in mind that there is no inherent logical or practical reason why the second aspect of the rule must accompany the first. It would of course be perfectly possible to have a rule of liability in which the plaintiff's contributory negligence would not count at all (as under workmen's compensation statutes and in many situations under the common law). But it would also be possible to have a rule that contributory negligence would diminish, but not defeat plaintiff's recovery. Probably the modern trend, both of judicial decision and of legislation, is towards one or the other of these alternative solutions to the problem. But before we can fully understand or appraise this trend we should first inquire into the reasons why the all-or-nothing (or stale-mate) rule came to dominate Anglo-American law.